Expanded DNA collection draws fire

State's plan to take samples during arrests seen as intrusion on rights of accused

Oct. 22, 2012

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Editor/Local Enterprise

DNA testing has taken dangerous criminals off the streets, solved decades-old homicides, exonerated the falsely accused and freed the wrongly imprisoned.

“It’s an exciting time,” Ed Wall, administrator of the state Justice Department’s Division of Criminal Investigation, said of its seemingly endless potential.

But while law enforcement hails the ever-expanding reach of DNA evidence, others in the justice system fear that the constitutional rights of the accused could eventually be swept aside.

A case in point is a proposal that would expand DNA collection to anyone arrested for a felony offense and certain misdemeanor crimes. Currently, DNA samples are collected after a conviction.

Supporters say it would expand the state’s DNA database and be used to match evidence from crime scenes to suspects, but opponents contend it is an intrusion on the rights of those who haven’t been convicted of a crime.

“This is going too far afield,” said Neenah attorney Rob Bellin. “I don’t see how that could ever be constitutional.”

Chris Ahmuty, executive director of American Civil Liberties Union of Wisconsin, said the proposal is problematic. “We’re not opposed to using technology, but the ACLU also believes we shouldn’t allow the lure of new sparkling technologies to blind us to the affordance of civil liberties and constitutional rights in law enforcement in general.

“Good law enforcement doesn’t have to violate the rights of suspects in order to be effective. Don’t we lose something in terms of privacy and personal autonomy and what we expect to be reasonable police procedures?” Ahmuty said.

Proposal praised, panned

Under the Justice Department’s proposal that will be reviewed by the Legislature in 2013, police would collect DNA samples from those arrested for a felony and adults convicted of misdemeanors.

The samples would be directed to a national databank and be available to police nationwide to seek a match to evidence from a crime.

The proposal, which would go into effect on Oct. 1, 2014, would require 26 new full-time positions and building improvements to handle the additional samples. The projected cost is $7.2 million in the first two years, and it would be paid for with surcharges imposed after conviction.

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If the proposal, which is backed by Gov. Scott Walker, becomes law, Wisconsin would join 27 states and the federal government in collecting some form of DNA upon arrest.

Implementing the law would generate 68,000 additional DNA samples annually, compared with the 12,000 samples now being collected.

Wisconsin’s databank presently has about 150,000 profiles of convicted offenders.

“I think it’s a great idea,” Wall said of DNA on arrest. “I think it would really benefit Wisconsin.”

Walker, in expressing his support last spring for collecting DNA on arrest for certain crimes, said it will enhance public safety.

“DNA is the modern-day fingerprint,” Walker said. “This is a common-sense tool that will give Wisconsin the ability to cross-check information, identify suspects and get violent offenders off the streets.”

The proposal indicates there will be a method to expunge the samples of those who aren’t convicted from the database.

But Ahmuty believes that removing names could be a lengthy process, meaning that incorrect information could remain in a database for a considerable period of time.

“It’s already been on the database for every search for that whole year, plus it’s been shared with national databases,” Ahmuty said.

Ahmuty also pointed out that the charge against a suspect at the time of arrest is often downgraded by the time a case is resolved. For example, a suspect who is jailed on a preliminary charge of felony reckless endangerment might well be convicted of a misdemeanor battery count.

Charges are often changed and some are dropped.

“That happens in a high percentage of cases where charges are changed,” Ahmuty said.

Bellin said the DNA on arrest law could lead authorities to refer a suspect for prosecution on serious charges to obtain a DNA sample.

“There should be some rational relationship between the DNA collection and what someone is accused of doing,” Bellin said. “To just have that blanket law is outrageous.”

Constitutional issues

State Rep. Dean Kaufert, R-Neenah, isn’t opposed to the plan, but he wants to ensure that Wisconsin’s law would stand up to legal challenges.

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“For the most part, I side with law enforcement,” he said. “We just have to make sure there’s built-in safeguards. We’ll have to make sure it passes constitutional muster.”

Legal challenges to DNA collection have been undertaken in California and Maryland.

The ACLU has argued that California’s DNA collection efforts are unconstitutionally aggressive and that the spike in hits comes at the expense of civil liberties. The ACLU is asking the 9th U.S. Circuit Court of Appeals to strike down California’s Proposition 69, which authorized police to obtain a genetic sample from every person arrested on felony charges, not just those convicted.

In addition, the U.S. Supreme Court has already signaled its willingness to review Maryland’s DNA collection law after a federal appeals court there ruled it unconstitutional in April.

Bellin said Wisconsin should wait until the Supreme Court rules on the Maryland case before voting on the DNA on arrest law.

“I don’t know what the Legislature will do, but it makes sense to see what the U.S. Supreme Court does,” he said.

Philosophical questions

Ahmuty said he isn’t opposed to using DNA testing to solve crimes. But he thinks it is getting out of hand. “We really think the technology is useful and has its place, but the process of just collecting DNA from more and more people doesn’t make the database anymore efficient when it comes to solving crimes.

“To keep expanding the database, why would you stop at DNA on arrest? Why stop at siblings? To fit this logic, we should have DNA testing of newborns and put them into a national database.”

“Prior to DNA testing, if someone was arrested for a state crime, such as burglary or theft, we would do the booking, which consists of a mug shot and fingerprinting, and would fill out a fingerprinting card for the crime information bureau,” he said. “That card becomes the foundation of a criminal record. If they’re found not guilty or charges are dropped, it should show on the criminal history. We don’t pretend the arrest never happened.”

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Wilkinson said DNA is considered to be “the fingerprinting of your bodily fluids.”

“If you think of it, it makes sense to treat it like fingerprinting, which is based on arrest and not conviction.”

Still, Wilkinson is attentive to the rights of the accused and sees a need to apply stringent standards to the ever-widening use of DNA testing.

“We play by rules,” he said. “Part of our mission is to protect people’s rights. From my perspective, it’s important to vet those things and get some information from experts and try to understand what it is out there.

“Even though we’re going down a road that sometimes raises dilemmas for us and questions about what is right and wrong, there are some pretty stringent standards in place.”

Winnebago County Dist. Atty. Christian Gossett said the attorneys in his office are “pretty big advocates of protecting peoples’ civil rights.” He understands the moral and ethical debates of passing a law that requires the collection of DNA on arrest, but comes down on the side of protecting the community.

“The law enforcement side of me kicks in and making the world safer is better,” Gossett said.